Secretary for Law v Ulao Amantasi and 9 Others [1975] PNGLR 134

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1975] PNGLR 134
• Date: 01 August 1975
• Year: 1975

Full Title: Secretary for Law v Ulao Amantasi and 9 Others [1975] PNGLR 134

Full Court: Prentice SPJ, Raine J, Saldanha J

Judgment Delivered: 1 August 1975

1 Criminal law—murder; Sorcery; Sentence—inadequate

2 Sentence of 12 months upheld; victim reputed sorcerer; belief in the power of sorcery a relevant consideration; cultural setting, ignorance of law must be taken into account; prosecution appeal designed for grossly inadequate sentence

3 CRIMINAL LAW—Sentence—Murder—Relevant considerations—Murder of reputed sorcerer—Very primitive accused—Sociological factors pre–eminent—Sentences of 12 months' imprisonment taking into account 5 months in custody proper in circumstances.

4 CRIMINAL LAW—Appeal against sentence—Appeal by Secretary for Law against inadequacy of sentence should be confined to cases where sentence grossly inadequate—Supreme Court (Full Court) Act 1968, s29(1).

Ten accused pleaded guilty to the murder of one Yamo and were each sentenced to twelve months' imprisonment, the trial judge taking into account five months in custody prior to trial. The trial judge found that the killing of Yamo, who was believed to be a sorcerer, and believed to have caused the death of eleven people from the area, was planned, that the accused were of the most primitive type to be found in the community with strong beliefs in the power of sorcery, and, in killing Yamo, were acting in the interest of preservation of their society, which numbered some one hundred people only.

On appeal by the Secretary for Law against the inadequacy of the sentence—

Held:

(Per Prentice SPJ with whom Raine J agreed, Saldanha J dissenting) (1) In relation to sentencing this was a case where pre–eminently a consideration for survival and education of the group was that which should prevail over all other objects of punishment.

(2) The Courts in Papua New Guinea must still endeavour to carry out the task, as they have always done, of marrying the government sociological task to the imposition of the Criminal Code (Queensland adopted) by varying sentences for murders from the most severe to the notional.

(3) In all the circumstances the sentences were proper ones and the appeal should be dismissed.

Per curiam (per Raine J) The power of the Secretary for Law to appeal against sentence under s29(1) of the Supreme Court (Full Court) Act 1968 is designed for cases where it is considered that a trial judge has imposed a grossly inadequate sentence, not where the Crown's view is that the judge might reasonably have awarded rather more.

Appeal.

Ulao Amantasi and 9 others pleaded guilty to charges of murder of one Yamo, a reputed sorcerer. The trial judge imposed sentences of 12 months' imprisonment on each accused and took into account in each case five months in custody prior to trial. The Secretary for Law appealed pursuant to s29(1) of the Supreme Court (Full Court) Act 1968, against the sentence imposed in each case upon the ground that the sentences were inadequate and insufficient.

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Prentice SPJ:

This is an appeal by the Secretary for Law brought without leave under s29(1) of the Supreme Court (Full Court) Act 1968, on the ground of insufficiency of sentence. The learned trial judge imposed sentences of 12 months' imprisonment on each of the ten accused who pleaded guilty to the murder of one Yamo and had been in custody five months.

Mr Secretary concedes that this was a case involving primitive men killing a reputed sorcerer; but submits that it was of the nature of an intentional payback killing, and that it was elaborately planned. He relies on R v Bulda Melin [1973] PNGLR 278 as having established in effect that substantial gaol sentences are called for in all cases of wilful murder despite the primitiveness of the murderers.

It was submitted that Raine J in R v Ami Tabi and Others (1973) (Unnumbered and Unreported judgment of Raine J dated 21 March 1973, Ambunti) regarded himself as constrained to apply R v Bulda Melin [1973] PNGLR 278 in such a sense.

Sentencing policies in Papua, and latterly in Papua New Guinea, were built up along the lines described by Sir Hubert Murray in Papua Today (1924) at 85; and by Gore J in the Annual Report for Papua for 1930 (found in the "judgments" of this Court as "The Punishment for Crime Among Natives" No213). I have quoted from these sources in R v Peter Ivoro [1971–72] PNGLR 374. I have never known these principles to have been challenged or questioned in any way.

In deference to the submissions by the appellant, I have studied again the Full Court decision in R v Bulda Melin [1973] PNGLR 278. With respect, I do not think it is authority for the proposition for which it has been cited. I do not think that it was even before their Honours' minds that a general change in sentencing policy in regard to all wilful murders was being effected; or that long–standing principles were...